March 31, 2016

Coming in the Next Two Years: Revised Proposition 65 Safe Harbor Warning Regulations, Part II

On Tuesday, CBL blogged about some of the new proposed Proposition 65 warnings. As promised, there is more, and here it is.

OEHHA Tries and Fails to Solve The “Label” vs. “Labeling” Problem

OEHHA’s Safe Harbor Warning regulations have long held that warning language can appear on a “label” or on “labeling.” “Label” is given the usually accepted definition, while the current regulations define labeling as “any label or other written, printed or graphic matter affixed to or accompanying a product or its container or wrapper.” In 2005, the California Court of Appeal held (in Environmental Law Foundation v. Wykle Research, Inc. (2005) 134 CA 4th 60) that this regulation meant what it said, and that a warning could be transmitted by placing it in written instructions accompanying the product.

The last round of proposed regulations eliminated safe harbor status of warnings on the “labeling,” which would be a serious problem for companies who provide the warnings with other safety information in their use and care guides, manuals, etc. The new regulations contain an ambiguity. On the one hand, new section 25601(d) provides that

Consumer product exposure warnings must be prominently displayed on a label, labeling or sign, and must be displayed with such conspicuousness as compared with other words, statements, designs or devices on the label, labeling or sign, as to render the warning likely to be read and understood by an ordinary individual under customary conditions of purchase or use.

But then there is section 25602(a):

Unless otherwise specified . . . a warning meets the requirements of this article if it . . . is provided using on or more of the following methods:

(3) A label that complies with the content requirements in Section 25603(a).

And no mention of labeling!.

Our sense is that after this is pointed out during the comment period, OEHHA will have to make a correction.

Internet Warnings May Become Mandatory

As in the last version of the regulations, OEHHA seeks to make on-line warnings before Internet sales mandatory. We continue to find this odd.

OEHHA has always taken the position that its warning regulations do not specify the only way to provide a clear and reasonable warning, but that compliance with the regulations provides a “safe harbor,” eliminating the need for case-by-case determinations of compliance if the regulations are followed. And yet, in its provision on Internet sales (section 25602(b)), the mandatory language seems to indicate that the warning provisions must be followed for all Internet sales”

For Internet purchases, a warning that complies with the content requirements of Section 25603(a) must be provided by including either the warning on the product display page, or a clearly marked hyperlink using the word “WARNING” on the product display page, or by otherwise prominently displaying the warning to the purchaser prior to completing the purchase. If an on-product warning is provided pursuant to Section 25602(a)(4), the warning provided on the website may use the same content as the on-product warning. For purposes of this article, a warning is not prominently displayed if the purchaser must search for it in the general content of the website.

In other words, OEHHA isn’t just saying that this is a way to ensure warnings are clear and reasonable. It is purporting to require this warning mechanism for all Internet sales.

The Regulations Eliminate the Limitation on Supplemental Information

The last iteration of the new regulations included the following: “A person may provide information to the exposed individual that is supplemental to the warning. . . .In order to comply with this article, supplemental information may not contradict the warning.”

We felt that this, together with a rather convoluted example OEHHA gave, violated First Amendment rights. Apparently, OEHHA agreed, eliminating the provision. In the new regulations, OEHHA only limits the use of supplemental information contained in the warning itself (section 25601(f)):

The warning may contain information that is supplemental to the warning content required by this article only to the extent that it explains the source of the exposure or provides information on how to avoid or reduce exposure to the identified chemical or chemicals. Such supplemental information may not be substituted for the warning required by this article.

Very Little Relief to Retailers

The last version of the regulations provided that retailers were not responsible for warnings unless they sold the product under their own brand or trademark, they had knowingly and intentionally caused the chemical to be in the product, had covered, obscured, altered or failed to use the warning their supplier had or offered to provide them, or had “actual knowledge of the potential consumer product exposure requiring the warning, and there is no manufacturer, producer, packager, importer or distributor of the product who [has ten or more employees or has a business location or agent for service in California].”

This seemed fine until one got to the next section, stating that if the retailer received a sixty day notice, it would be deemed to have actual knowledge two days later if it continued to sell the product without warning. This understandably resulted in howls from retailers. OEHHA responded by changing two days to five, obviously not a significant change.

What’s Next?

The public comment period remains open until April 11, and may be extended (there has been one request for extension for 30 days). Public comments can be sent to P65Public.Comments@oehha.ca.gov (subject line to state “Clear and Reasonable Warnings Regulation”). Then OEHHA can either adopt this version, or propose another one. CBL thinks the effective date will be sometime in late 2018.